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2019 (9) TMI 1627 - HC - Income TaxTP Adjustment - adjustment of AMP expenses - HELD THAT - The issue relating to adjustment of AMP is covered by the decision of the Court in Sony Ericsson Indio Pvt. Ltd 2015 (3) TMI 580 - DELHI HIGH COURT and Maruti Suzuki India Ltd. 2015 (12) TMI 634 - DELHI HIGH COURT We are of the considered opinion that the AI.P of an international transaction involving AMP expenses, the adjustment made by the TPO/DRP/AO is not sustainable in the eyes of law. At the same time, we cannot ignore the submission made by the learned DR that the matter is pending before Hon'ble Apex Court and the decision of Hon'ble Apex Court would be binding upon all the authorities. In view of the above, we set aside the orders of authorities below and restore the matter to the file of the Assessing Officer. We hold that as per the facts of the case and the legal position as of now and discussed above in this order, the adjustment made by the TPO/DRP/AO in respect of AMP expenses is not sustainable. However, if the above decisions of Hon'ble Jurisdictional High Court which is under consideration before the Hon'ble Apex Court is modified or reversed by the Hon'ble Apex Court, then the Assessing Officer would pass the order afresh considering the decision of Hon'ble Apex Court.
Issues:
1. Condonation of delay in re-filing the appeal. 2. Transfer Pricing - Inclusion of Knowledge Processing Output Companies in comparables for ITES services. 3. Adjustment of Advertisement and Marketing Promotion (AMP) expenses. Analysis: 1. The judgment begins with the consideration of applications for condonation of delay in re-filing the appeal, where delays of 42 and 57 days were sought to be condoned. The court, after reviewing the reasons provided in the applications, granted the condonation of delay, disposing of the applications accordingly. 2. The main issue in the appeal (ITA 795/2019) pertains to Transfer Pricing. The Revenue challenged an order by the Income Tax Appellate Tribunal (ITAT) regarding the Assessment Year 2011-12. The Tribunal had found that some service providers identified by the Transfer Pricing Officer (TPO) were not comparable for Information Technology Enabled Services (ITES) as they were engaged in Knowledge Process Outsourcing (KPO) instead. The ITAT, after examining the companies in question, deleted 6 out of 10 companies from the comparables list, leading to a specific operating profit ratio. The Appellant contended that the ITAT should have remanded the matter back to the TPO if non-comparability was found. However, the Court upheld the ITAT's decision, emphasizing the Tribunal's fact-finding role and jurisdiction in Transfer Pricing matters. 3. Regarding the adjustment of AMP expenses, the Tribunal's decision was challenged based on the methodology used by the Transfer Pricing Officer. The Court referred to previous judgments, including Sony Ericsson India Pvt. Ltd. and Maruti Suzuki India Ltd., which highlighted that the Bright Line Test (BIT) is not a valid basis for determining international transactions involving AMP expenses. The Court reiterated that the Revenue must establish the existence of an international transaction before making adjustments for AMP expenses. The Court found the adjustments made were not sustainable in law and set aside the orders, restoring the matter to the Assessing Officer for reconsideration in light of the legal position and pending decisions before the Supreme Court. The Court dismissed the appeal, stating that the issues raised were covered by previous decisions, and no new legal question arose for consideration.
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